Citation Nr: 18152278 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-25 115 DATE: November 21, 2018 ORDER A rating in excess of 50 percent for sleep apnea is denied. Restoration of a 100 percent disability rating for prostate cancer is denied. FINDINGS OF FACT 1. The Veteran’s sleep apnea requires the use of a continuous airway pressure (CPAP) machine when sleeping, but the evidence does not show chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a tracheostomy. 2. A February 2013 rating decision proposed to reduce the disability rating assigned to the Veteran’s service connected prostate cancer from 100 percent to 20 percent. 3. A June 2013 rating decision effectuated the proposed reduction for prostate cancer from 100 percent to 20 percent, effective September 1, 2013. 4. During the appeal period, the Veteran’s prostate cancer has not been manifested by local recurrence or metastases of prostate cancer; it has been more nearly manifested by a voiding dysfunction that includes a daytime voiding interval between one and two hours, urine leakage that does not require the use of absorbent material, and awakening to void two times per night. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for sleep apnea are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code (DC) 6847. 2. The criteria for restoration of 100 percent disability rating for residual of prostate cancer are not met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 4.1, 4.3, 4.6, 4.7, 4.10, 4.13, 4.115b, DC 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to a rating in excess of 50 percent for sleep apnea. The Veteran contends that his sleep apnea warrants an evaluation in excess of 50 percent because he has interrupted sleep at night with fatigue during the day. The Board concludes that the preponderance of the evidence is against a rating in excess of 50 percent for sleep apnea. The evidence does not show that the Veteran’s symptoms more nearly approximate the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.97, DC 6847. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re evaluation in accordance with changes in a Veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s sleep apnea is evaluated under the rating criteria for sleep apnea syndromes, which includes obstructive, central, and mixed sleep apneas. A 100 percent rating is assigned when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; a tracheostomy is required. A 50 percent rating is warranted for sleep apnea that requires the use of a breathing assistance device such as a CPAP machine. 38 C.F.R. § 4.97, DC 6847. VA medical records show the Veteran underwent a sleep study in March 2014 at which time he was diagnosed with sleep apnea. Follow up sleep studies conducted in April 2014 and May 2014 showed the Veteran benefited from use of a CPAP machine, and he was issued a device. According to a November 2017 sleep apnea disability benefits questionnaire (DBQ), the Veteran reported persistent daytime somnolence even with use of a CPAP machine. However, there were no other findings, signs, or symptoms attributable to the sleep apnea, no surgical scars due to sleep apnea, and no other significant test findings and/or results. The Board finds that the criteria for an increased rating for sleep apnea have not been met. The Veteran is already in receipt of a 50 percent rating, which is the second highest rating available under the appropriate rating criteria. The next highest rating is 100 percent, and it requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. However, VA and private medical records and the November 2017 VA examination are negative for these symptoms. Because the disability has not met the criteria for a higher evaluation at any time during the appeal period, there is no basis for a staged rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). The weight of the evidence is against the claim. Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Restoration of a 100 percent disability rating for prostate cancer. The Veteran contends that he is entitled to restoration of a 100 percent disability rating for prostate cancer. See October 8, 2015 statement of Veteran’s service organization. The Board concludes that the preponderance of the evidence is against restoration of a 100 percent disability rating for prostate cancer as the correct procedures for reduction of the evaluation were followed and because reexamination disclosed improvement in the disability. 38 U.S.C. §§ 5107(b), 5112; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.13, 38 C.F.R. § 4.115b, DC 7528. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60 day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, as a threshold matter, the Board finds that VA provided the required notice, gave the Veteran an appropriate period of time for response, and effectuated the reduction in accordance with applicable laws. The procedural history of the claim reflects that VA complied with the procedures required under 38 C.F.R. § 3.105(e). Neither the Veteran nor his representative has asserted a failure by VA to comply with 38 C.F.R. § 3.105(e). Where an evaluation has not continued at the same level for five or more years, 38 C.F.R. § 3.344 (a) and (b) are not for application. In the present case, the Veteran’s 100 percent evaluation for prostate cancer was awarded effective December 6, 2012, and was reduced effective September 1, 2013, which is less than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (finding that the express language of § 3.344(c) and other VA regulations compels the conclusion that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction). As such, the requirements of 38 C.F.R. § 3.344 (a) and (b) do not apply in the instant case; but rather, in this matter, evidence disclosing improvement in the disability is sufficient alone to warrant reduction in a rating. 38 C.F.R. § 3.344(c). For the period beginning September 1, 2013, the Veteran’s disability has not been manifested by local recurrence or metastases of prostate cancer to warrant a 100 percent rating under 38 C.F.R. § 4.11b, DC 7528. Therefore, the Veteran’s disability is to be rated as a voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.11b, DC 7528 note. The RO rated the Veteran’s residuals of prostate cancer as a voiding dysfunction. See 38 C.F.R. § 4.115a. The evidence of record shows that the Veteran does not have renal dysfunction. According to 38 C.F.R. § 4.115a, an evaluation of 20 percent is assigned whenever there is a daytime voiding interval between one and two hours, or awakening to void three to four times per night. An evaluation of 20 percent also is assigned whenever there is a requirement for the wearing of absorbent materials that must be changed less than two times per day. A higher evaluation of 30 percent is not warranted unless evidence demonstrates urinary retention requiring intermittent or continuous catheterization. An evaluation of 40 percent is not warranted unless the evidence shows required wearing of absorbent materials which must be changed two to four times per day, or whenever there is a daytime voiding interval of less than one hour, or awakening to void five or more times per night. An evaluation of 60 percent is not warranted unless the evidence shows required use of an appliance or the wearing of absorbent materials which must be changed more than four times a day. 38 C.F.R. § 4.115a. In a December 2012 rating decision, the Veteran was granted service connection for prostate cancer with a disability rating of 100 percent, effective October 25, 2011, based on active malignancy. According to a January 2013 VA examination report, the examiner found that the Veteran’s prostate cancer was in remission with a voiding dysfunction that included a daytime voiding interval between one and two hours, but no urine leakage, or other symptoms. Consequently, in a February 2013 rating decision, the RO proposed to reduce the disability rating from 100 percent to 20 percent. A February 22, 2013 letter notified the Veteran of the proposed reduction based on evidence that the prostate cancer had improved. In a June 2013 rating decision, the RO effectuated the proposed reduction of the rating for prostate cancer from 100 percent to 20 percent, effective September 1, 2013, based on a daytime voiding interval between one and two hours. A July 10, 2013 notification letter notified the Veteran of the reduction. A September 9, 2013 letter from the Veteran’s doctor indicated that the Veteran experienced daytime urinary frequency and urgency with small volumes and frequent nocturnal awakening to void. At a March 2014 VA annual examination, the Veteran reported nighttime awakening to void three to four times per night. A May 2014 DBQ noted that the Veteran’s prostate cancer was in remission, that the Veteran had completed radiation therapy in May 2013, and was undergoing intensive follow up four times per year. The examiner noted that the Veteran had a voiding dysfunction that caused urinary frequency, a daytime voiding interval between two and three hours, and nighttime awakening to void two times per night, but no other symptoms. According to a December 2017 DBQ, the Veteran continued to have a voiding dysfunction, consisting of increased urinary frequency with a voiding interval between one and two hours, urine leakage that did not require the use of absorbent material, awakening to void two times per night, and symptoms of obstructive voiding including marked hesitancy, markedly slow stream, markedly weak stream, and markedly decreased force of stream, but no other symptoms. Although the December 2017 DBQ showed some worsening of the Veteran’s voiding dysfunction, the Board finds that the probative evidence demonstrates that there was actual improvement in the Veteran’s service connected prostate cancer with actual improvement in the Veteran’s ability to function under the ordinary conditions of life, as the Veteran’s prostate cancer remains in full remission. The weight of the evidence is against restoration of a 100 percent disability rating for active prostate cancer. Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel